Shaffer v. Derring

• Decision Date: 13 May 1925
• Docket Number: No. 3746.,3746.
• Parties: SHAFFER v. DERRING.
• Court: Missouri Court of Appeals

272 S.W. 1049

SHAFFER v. DERRING.

No. 3746.

Springfield Court of Appeals. Missouri.

May 13, 1925.

Appeal from Circuit Court, Greene County; Orin Patterson, Judge.

Action by Elmer C. Shaffer against L. C. Derring. Judgment for plaintiff, and defendant appeals. Affirmed.

Eugene F. Everett, and Wright & Ruffin, all of Springfield, for appellant.

Page & Barrett, of Springfield, for respondent.

BAILEY, J.

This action is based on two promissory notes offered in evidence. One is for $530, dated December 4, 1923, payable 90 days after date with interest from maturity at the rate of 8 per cent, and provides for an attorney fee of 10 per cent. under certain contingencies. The note had an indorsement on the back as follows:

"This note is secured by entire stock of groceries and fixtures in store building at 1014 South Clay avenue, Springfield, Missouri. Furthermore, this note must be paid when either this store building at 1014 South Clay avenue, or the residence of Mrs. Lottie C. Derring at 606 East Grand street, Springfield, Mo., are sold.

                        "[Signed] Mrs. Lottie C. Derring."
                

The other note was for $200, dated November 2, 1923, payable 90 days after date with interest from date at 8 per cent. Both notes were payable to plaintiff and signed by defendant. The defendant in her answer admitted execution of the notes, but set up as a special defense that plaintiff and defendant had entered into a partnership in November, 1923, to operate the store on Clay street in a building owned by defendant; that the note for $530 was merely a receipt for plaintiff's interest in the store, and was not to be paid; that, by oral agreement, if plaintiff desired to dissolve the partnership, defendant was to have reasonable notice so as to enable her to secure the means by which to purchase plaintiff's interest. Defendant further alleges plaintiff failed to comply with the partnership agreement in certain particulars and asks for an accounting. The answer also contains a counterclaim in the sum of $249 for board, lodging, and sundries. The case went to trial before the court, and judgment was for plaintiff for the full amount asked, and against defendant on the counterclaim. From this judgment, defendant has appealed.

Appellant first assigns as error the admission of any testimony under plaintiff's petition. Upon what theory this alleged error is based is not clear. The petition was in regular form. No objection was made to the introduction of the notes in evidence. After the two notes were introduced, plaintiff rested and defendant offered a demurrer to the count evidenced by the $530 note. This demurrer was overruled for the time being. Defendant excepted to the ruling, but offered evidence to sustain the issues on her part. By this action, she waived her demurrer to the evidence. Klockenbrink v. Railroad Co., 81 Mo. App. 351, 409. We are unable to discover any reason for the first assignment of error and rule that point against defendant.

The second and third assignments of error are in regard to admitting and excluding testimony. Defendant fails to point out any evidence which was erroneously admitted or rejected. After carefully reading the record, we find no error, in this respect, of which defendant can complain.

The defendant further charges the court erred in not holding that this action was an action in equity. The trial was before the court. There is nothing to indicate whether or not the court considered the action converted from one at law to one in equity by defendant's answer, except that all the issues were found against defendant. The same point is raised by defendant's final assignment of error to the effect that the court erred in not holding the contract a partnership and in not taking an accounting. We shall consider these objections together.

Defendant's answer sets up an oral contemporaneous agreement as a defense to the notes sued upon. No demurrer was filed to the answer, but plaintiff objected to the testimony offered to prove the agreement which evidence was admitted by the learned trial judge, "subject to objection." This practice is often followed in trials before the court, but has been condemned by appellate courts and held to be reversible error if the point is preserved by exceptions. Seafield v. Bohne, 169 Mo. loc. cit. 546, 69 S. W. 1051. The court having found the issues in favor of plaintiff, he does not complain of the court's failing to rule on his objection to the evidence.

Defendant's contention, that the court should have held a partnership existed between plaintiff and defendant, and should have ordered an accounting (granting such defense to be a proper one in this case),...